Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 13TH DAY OF AUGUST 2013 22ND SRAVANA, 1935 WP(Crl.).No. 364 of 2013 (S) ----------------------------- PETITIONER: ----------- JASMINE, KANNANKARAKIZHAKETHIL PUTHIYA VEEDU, KOMALOOR CHUNAKARA, MAVELIKARA BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.K.J.SHARATH KUMAR RESPONDENT: -----------
1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT HOME DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 69500
2. DIRECTOR GENERAL OF POLICE, KERALA, OFFICE OF THE DIRECTOR GENERAL OF POLICE THIRUVANANTHAPURAM 69500
3. DISTRICT POLICE CHIEF, ALAPPUZHA 68800
4. INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION, KAYAMKULAM P.O ALAPPUZHA 68800
5. SYAMLAL,PANAYAMCHERIL PUTHUVAL, MANGLAM P.O, ARATTUPUZHA NOW RESIDING AT MULLASERIL THEKKETHIL KAYAMKULAM P.O, ALAPPUZHA DISTRICT 69050
6. RAZIYA BEEVI, MULLASERIL THEKKETHIL, KAYAMKULAM P.O ALAPPUZHA DISTRICT 69050 R1 TO R4 DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI R5 BY ADV. SMT.ASHA ELIZABETH MATHEW R6 BY ADV. SMT.INDU SUSAN JACOB THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 13-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(Crl.).No. 364 of 2013 (S) ----------------------------- APPENDIX -------- PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 A TRUE COPY OF THE PETITION OP (G & W) NO 1104/12 FILED BEFORE FAMILY COURT ALAPPUZHA RESPONDENT(S)' EXHIBITS : ---------------------- EXT.R5(A). COPY OF THE IDENTITY CARD OF ADITHYA ISSUED FROM THE NEW INDIAN MODERN SCHOOL, DUBAI. EXT.R5(B). COPY OF RELEVANT PAGES OF THE 5TH RESPONDENT'S PASSPORT. EXT.R5(C). COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE 5TH DRESPONDENT'S DAUGHTER. EXT.R5(D). COPY OF THE CMP NO.4232/2013 FILED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, MAVELIKKARA. / TRUE COPY / P.A. TO JUDGE VK ANTONY DOMINIC & P.D. RAJAN, JJ.
------------------------------------------- W.P.(Crl) No. 364 of 2013 ---------------------------------------------- Dated this the 13th day of August, 2013 JUDGMENT
ANTONY DOMINIC,J.
The petitioner and the 5th respondent are wife and husband. In their marriage, they have 2 children, and one among them is a minor daughter. The minor daughter is in the custody of the 5th respondent. According to the petitioner, the 5th respondent is living in adultery with the 6th respondent and he has left the custody of the minor daughter also to the 6th respondent.
2. It is alleged that the 6th respondent is now trying to convert the minor daughter into a different religion and that therefore, the 5th respondent has forfeited his right to be the natural guardian of the child. It is making this allegation now she has filed this writ petition with a prayer to issue a writ of Habeas Corpus for the production of the minor daughter and to give the child in her custody.
3. Notice was issued by this Court and the counsel entered appearance on behalf of respondents 5 and 6.
4. In the counter affidavit filed by the 5th respondent, he has stated that the minor daughter is still in his custody only. He has also W.P.(Crl)No.364/13 2 averred that he has filed O.P.No.5/2013 before the Family Court, Mavelikkara seeking divorce.
5. Admittedly, from the pleadings in the counter affidavit filed by the 5th respondent, it is stated that the minor daughter is in his custody and on the materials available, we are not in a position to conclude that he has forfeited his right to be the natural guardian of the child. It is also disclosed that O.P.(G&W)No.1104/2012 filed by the petitioner to declare herself as the guardian of the children and custody of the daughter mentioned above, is pending before the Family Court, Alappuzha. It is also stated that O.P.No.1105/2012 seeking return of patrimony is also pending before the Family Court, Alappuzha.
6. In the absence of illegal detention of the child, this Court cannot entertain this writ petition with a prayer for issue of a writ of Habeas Corpus. However, the disputes between the parties are now pending before the Family Court at least in three proceedings. Therefore, it will be in the interest of both sides to have an early finality to all those proceedings. In such circumstances, while we close this writ petition, we direct that the Family Court, Mavelikkara shall expeditiously give a finality to the proceedings between the parties. ANTONY DOMINIC, JUDGE P.D. RAJAN, JUDGE. acd W.P.(Crl)No.364/13 3 W.P.(Crl)No.364/13 4